When trying to determine what you need to preserve, act reasonably. As a general rule, as Zubulake IV said, a party need not preserve “every shred of paper, every e-mail or electronic document, and every backup tape.”

In the early days of e-discovery, individual plaintiffs wielded most of the power in their ability to wage large and expensive discovery against corporate parties. Now, the technology revolution has changed that power dynamic.

We know there is no general duty to preserve evidence before litigation is reasonably anticipated, so the trick is to determine what facts the court will consider when determining when that duty attaches.